In the summer of 2016, Canada’s Supreme Court called on all criminal justice system actors to undertake real, transformative change. The Jordan decision – one of the few Canadian court decisions to become a household name – created the expectation among Canadians that their government would act to improve the criminal justice system. The government’s justice reform bill, C-75, has arrived to very mixed reviews.
Although the Canadian government says it finally intends to repeal the anal sex provisions of the Criminal Code, activists are speaking out against C-75, the Liberal government’s long-awaited justice reform bill, for not repealing provisions that target sex workers and LGBT persons.
Bill C-75, a 300-page piece of legislation, will modernize aspects of Canada’s Criminal Code and make dramatic changes to criminal court proceedings. However it will not change the Harper-era sex work regime, and won’t criminalize the mutilation of intersex children or repeal “bawdy house” laws or obscenity laws.
According to Xtra:
Last year, the government promised to “take action” on The Just Society Report, published by LGBT lobby group Egale, which called for sweeping changes to the government’s relationship with LGBTQ Canadians.
The sex work laws, which the Liberals promised to repeal during the last election, are an especially strong sticking point.
As Kimberley Manning wrote in The Montreal Gazette,
The Protection of Communities and Exploited Persons Act, enacted in 2014, added a host of laws that criminalize sex work in Canada. Canadians were told that the application of a “Nordic” regime would make conditions safer for sex workers by “decriminalizing sex workers but criminalizing clients.” In reality it not only re-criminalized the sale of sex in certain contexts, but also criminalized the purchase, advertising and the involvement of any third party in sex work. As a consequence, sex work is often driven out of doors and out of sight — rendering sex workers more vulnerable to increased isolation, violence and homelessness.
The justice minister did not give a timeline for any new bill relating to sex work, although the government’s own report on community consultations found that there was consensus among those consulted for “the repeal of offences that criminalize those who sell their own sexual services.” The Standing Committee on Justice and Human Rights is currently studying the sex work laws and their impact on human trafficking.
“I carefully consider the views of stakeholders, experts, and all Canadians when making decisions about criminal justice legislation and programs. In terms of the review of the former C-36 [the Harper government’s bill that recriminalized sex work], that work continues,” Justice Minister Jody Wilson-Raybould said in an emailed statement.
While the third-party NDP supports repealing the sex work provisions, LGBTQ issues critic Randall Garrison says that there are no plans for the party to introduce a private member’s bill on the issue.
The bill would change the Criminal Code so that anal sex and vaginal sex are treated the same under the law.
Currently under Section 159 of the code, there is a different age of consent for anal sex compared to vaginal intercourse, and it is a crime to have anal sex if more than two people are present. Courts in five provinces have struck the section down as unconstitutional, but charges continue to be brought under it across Canada. Activists have called for its repeal for decades.
Bill C-32, which would have repealed the anal sex provisions of the Code, was introduced with much fanfare in November 2016. Despite all parties agreeing to the original bill, it was never brought to a vote. C-32 was incorporated into another reform bill, C-39, four months later. C-39 was also never brought to a second reading.
But Liberal MP Randy Boissonnault, who serves as special advisor to the prime minister on LGBTQ2 issues, says the government intends to pass C-75 this time.
“We heard from the community that [Section 159] is a piece of archaic legislation that has continued to affect young men, so it’s important to get this debated and passed through the house,” he says.
Bawdy house laws
When asked if the government is walking back its commitment to act on The Just Society Report, Boissonnault says, “Categorically, no.
“The Just Society Report was very clear that it wanted an apology. We did that. There was a class action lawsuit that was put together and we settled that. We committed to . . . expunging records for people who still have criminal records for same-sex consensual activities.”
He says the bawdy house provisions of the Criminal Code still stand because they impact straight and gay people, and because their use has been strictly limited by a pair of Supreme Court decisions in the last decade.
The Labaye decision in 2005 restricted the definition of indecency in the bawdy house law to acts that cause serious harm. The Bedford decision in 2013 struck the section that dealt with sex work in a bawdy house.
C-75 leaves the bawdy house provisions intact, but does allow for the option that the charge of operating a common bawdy house be treated as a summary offense, and reduces the maximum penalty from five years to two.